Mince v. Tucker

Brent, J., delivered the opinion of the Court. The motion to dismiss the appeal in this case will he granted. The order of the Court below, dissolving the injunction, was passed on the 26th of June, 1871, and the appeal therefrom was taken by the complainant on the 29th of the same month. The transcript of the record, however, was not transmitted to this Court until the 22d of May, 1872, nearly eleven months after the appeal was taken.

Among the rules and regulations respecting appeals, adopted by this Court under the 18th section of Article 4 of the Constitution, the tenth rule requires that -the transcript of the record should have been sent up within six months from the time the appeal was prayed. And the sixteenth rule provides that “no appeal shall be dismissed because the transcript shall not have been transmitted within the time prescribed, if it shall appear to the Court of Appeals, that suoh delay was occasioned by the neglect, omission or inability of the clerk; but such neglect, omission or inability, shall not be presumed, but must be shewn by the appellant.” To meet this requirement, the appellant has filed the deposition of Mr. Charles D. Hiss, who states that about a month after the appeal was taken, he called at the request of the appellant, at the office of the Circuit Court and asked the clerk to send up the record in this case, that the clerk told him he would not send it up until the costs were paid. The witness then asked him what the costs were, and was informed they were fifty-two dollars and twenty-five or thirty-five cents. He also states, that the cost of the record was fifteen dollars.

It appears from the certificate of the clerk attached to the record, that the transcript was completed on the first